District of Columbia’s Cannabis Employment Protections Amendment Act of 2022

/in /by District of Columbia’s Cannabis Employment Protections Amendment Act of 2022

On July 13, 2022, the District of Columbia’s mayor signed Bill B24-0109 into law. The new law is named the Cannabis Employment Protections Amendment Act of 2022. In short, this new law prohibits employers from firing, failing to hire, suspending, demoting, failing to promote, or penalizing an individual based on their use of cannabis, participation in a medical cannabis program, or an individual’s failure to pass an employer’s cannabis drug test subject to certain exceptions.

While the act provides strong protections for an individual’s legal cannabis usage, there are built-in protections for the employers as well. Employers will not be in violation of the act by taking actions related to the usage of cannabis if the employment position is designated as safety-sensitive; the employer’s actions are required by federal statute, regulations, or a federal contract or funding agreement; or if the employee used, consumed, possessed, stored, delivered, transferred, displayed, transported, sold, purchased, or grew cannabis at the employer’s place of business, while performing work for the employer, or during the employee’s hours of work.  Further, the act is not meant to be construed as requiring an employer to permit or accommodate cannabis usage during work hours or at the employer’s place of business.  Employers are also still permitted to adopt reasonable drug-free workplace policies, such as the use of cannabis drug testing following an accident, or for employees in safety-sensitive positions.

The act defines safety-sensitive to mean positions, designated by employers as such, in which it is reasonably foreseeable that if the employee performs the position’s duties or tasks under the influence of drugs or alcohol, the person will likely cause actual, immediate, and serious bodily injury or loss of life to self or others. Examples of these types of positions include security services; operation of motor vehicles, heavy machinery, and equipment; work on active construction sites, near power or gas utility lines; supervision of routine care for individuals unable to care for themselves who reside in an institution or other custodial settings; and positions involved with the administration of medicine or other medical treatment.

For those employers who are non-compliant, the act provides individuals with three methods of recourse: an individual can file a complaint with the Office of Human Rights, file a complaint with the Attorney General’s office, or bring a private cause of action against the employer. An individual must either file their complaint or bring their cause of action within one year after the employer’s act of non-compliance. Penalties against employers found to be non-compliant include civil penalties, payment of the complainant’s lost wages, equitable relief as appropriate, and payment of attorney’s fees and costs.

The Cannabis Employment Protections Amendment Act of 2022 went into effect on July 13, 2022. You can read the complete Act here.

Written by associate Samantha Schilling.

District of Columbia Council Resolution PR24-0783, “Parity in Workers’ Compensation Recovery Emergency Declaration Resolution of 2022”

/in /by District of Columbia Council Resolution PR24-0783, “Parity in Workers’ Compensation Recovery Emergency Declaration Resolution of 2022”

Historically, under the District of Columbia’s Official Code § 32-1503(a-1), an injured worker could not receive any workers’ compensation benefits in the District of Columbia, if the worker had ever received benefits for the same accidental injury or death, in another state.

However, on June 6, 2022, new legislation was introduced to the Council of the District of Columbia, seeking to amend the District of Columbia’s Workers’ Compensation Act of 1979. The purpose of this legislation is to permit an employee access to workers’ compensation benefits in the District of Columbia, even if the injured worker has applied for and received benefits in another state.  The basis for this proposed legislation was that the current legislative scheme, which bans an injured worker from recovering in the District of Columbia if they have received benefits in another state, was problematic for injured workers since workers’ compensation laws in the District of Columbia are more favorable to the injured workers than in neighboring states, i.e., Maryland and Virginia.  The legislation included a comment that the injured worker would not be able to “double dip,” meaning that the court would be required to reduce damages based on the amount of compensation recovered in another state.

The legislation was put forth on an emergency basis, relying on the justification that an injured worker should not be prevented from accessing the full compensation and benefits provided under the District of Columbia law.  The proposed legislation was approved by the Council on June 7, 2022, and was sent to Mayor Bowser for ratification.

On June 17, 2022, opponents of the proposed legislation drafted a letter to Mayor Bowser. In the letter, the opponents argued that the proposed legislation would cause a substantial increase in the number of claims in the District of Columbia, noting that the current jurisdictional rule prevents an injured worker from seeking benefits in the District of Columbia once their benefits end in another state.  Additionally, the opponents argued that an injured worker has the right to choose whether to file in the District of Columbia as opposed to another jurisdiction at the onset of their claim.  Finally, the opponents argued that the proposed legislation would result in multiple issues, including, but not limited to, the statute of limitations issues and the effect of orders issued by other jurisdictions.

Notwithstanding the opposition, Mayor Bowser signed the proposed legislation, thereby adopting PR24-0783. As a result, an injured worker can receive workers’ compensation benefits in the District of Columbia, even if the injured has applied for, or received, benefits in another state for the same accidental injury.  The emergency legislation expires on September 26, 2022.https://lims.dccouncil.us/Legislation/PR24-0783

Written by associate Marleigh Davis.

Transportation Safety Amid the Supply-Chain Issues of 2022

/in /by Transportation Safety Amid the Supply-Chain Issues of 2022

The 2021 Driver Shortage Report issued by the American Trucking Associations (ATA) found that the nationwide truck driver shortage hit a “historic high” with a loss of approximately 80,000truck drivers. If the current industry trend persists, a loss of 160,000 drivers is projected by 2030The ATA estimates that 1,000,000 new drivers will need to be recruited over the next ten years to replace truck drivers leaving the workforce and encourage industry growth. The national shortage of truck drivers is one of the many problems contributing to the significant supply-chain disruptions that have plagued 2022.It’s a dilemma that has caught the attention of everyone, including those governmental and political associations that have been tasked with finding the solution.

For example, to combat the truck driver shortage throughout the nation, Virginia Congresswoman Abigail Spanberger co-sponsored H.R. 7348; Strengthening Supply Chains Through Truck Driver Incentives Act of 2022. In short, the bill aims to fill truck driver vacancies and keep existing drivers on the road through refundable tax credits. If passed, the bill would give newly introduced truck drivers or those registered in trucking apprenticeship, a refundable tax credit of up to $10,000 and for up to two years. Those truck drivers that currently hold a valid Class A CDL and drive at least 1,900 hours in the year will receive up to a $7,500 refundable tax credit for up to two years. The bill was introduced in the House of Representatives on March 31, 2022, and was referred to the House Committee on Ways and Means at that time.

In Virginia, a partnership between the Virginia Ready Initiative and the Virginia Trucking Association offered $1,000 to any Virginian who completed a truck driver training program at a Virginia community college and passed a CDL test. Similar incentive programs are being launched throughout the country to help relieve the widespread supply-chain disruptions and combat local unemployment rates.

The push for new, inexperienced, commercial drivers on the road will certainly affect trucking liability and transportation safety. Consider the Safe Driver Apprenticeship Pilot program launched by the Federal Motor Carrier Safety Administration (FMCSA) that allows employers to establish apprenticeship programs for certain drivers between the ages of 18 and 21 to drive big rigs across state lines. Despite numerous strict safety measures, there is an overarching concern that young and inexperienced drivers have higher crash rates.

According to the results of the study conducted by Virginia Tech Transportation Institute, however, while both age and commercial motor vehicle (CMV) driving experience play a role in driver risk, CMV driving experience is more important than age when considering risk. The study found that older inexperienced CMV drivers had higher crash rates and odds of being involved in a crash than their younger, inexperienced counterparts. Based on the results of this study, employers are being urged to enhance their apprenticeship and training programs.

Written by associate Alexandra Monaco.

Court of Special Appeals: A Commercial Tenant’s Employee is a “Tenant” While on Employer’s Leased Property for Purposes of Premises Liability

/in /by Court of Special Appeals: A Commercial Tenant’s Employee is a “Tenant” While on Employer’s Leased Property for Purposes of Premises Liability

In Ford v. Edmondson Vill. Shopping Ctr. Holdings, LLC, 251 Md. App. 335, 254 A.3d 138 (2021), the Court of Special Appeals revisited the issue regarding the extent to which a landlord has a duty to protect its tenants from the criminal acts of third persons committed on the landlord’s property. In a premises liability case, the duty owed by the owner of the property to someone on the property begins with an analysis of the latter’s legal status on the property at the time of the incident. Although the Ford court ultimately remanded the case on the issue of whether the landlord owed the crime victim a duty of care, before doing so, it seemingly created a bright-line rule previously undeclared in Maryland case law: for purposes of premises liability, an employee of a commercial tenant has the same legal status on the leased property as the employer-tenant itself: a tenant, not a business invitee.

The underlying facts in Ford involve the shooting death of Deric Ford that occurred on August 8, 2017, inside the Dollar General store in the Edmonson Village Shopping Center (“Shopping Center”) in Baltimore City, Maryland. At the time of the shooting, Mr. Ford was working as the Dollar General store manager when he was shot by a robber who entered the store and held him at gunpoint. Mr. Ford’s estate (“Plaintiffs”) brought a wrongful death action in the Circuit Court for Baltimore City against the owner of the Shopping Center, Edmonson Village Shopping Center Holdings, LLC (“Edmonson Village”), alleging that Edmonson Village failed to take adequate security measures in common areas of the Shopping Center, causing it to become a “haven” for foreseeable violent criminal activity, and thereby proximately causing the store manager’s murder.

Edmonson Village moved to dismiss the complaint arguing that as a matter of law, Mr. Ford was not a business invitee and that it did not owe Mr. Ford a duty to protect him from the criminal acts of third persons inside the Dollar General’s leased premises. The circuit court granted the motion ruling that, as an employee of a tenant working inside the leased premises, Mr. Ford’s status was that of a tenant, not a business invitee, and that Edmonson Village did not owe Mr. Ford a duty to protect him from the criminal acts of third parties committed inside the leased premises. Plaintiffs appealed.  The issue on appeal was whether the circuit court erred in dismissing Plaintiff’s negligence claims on the ground that Edmondson Village did not owe Mr. Ford a duty to protect him from the criminal acts of third persons that took place on the Dollar General store premises.

In Maryland, “the duty owed by the owner of the property to someone on the property begins with an analysis of the latter’s legal status on the property at the time of the incident.” See Davis v. Regency Lane, LLC, 249 Md. App. 187, 207 (2021) (cleaned up).  In analyzing Mr. Ford’s status on the premises at the time of the shooting, the court in Ford looked at various factors including the location on the property where the shooting occurred, the purpose for which Mr. Ford entered the property, the purpose Mr. Ford was serving at the time of the shooting, and the nature of Mr. Ford’s relationship with the Dollar General and Edmonson Village.

The court explained that “[a]lthough there is no Maryland case directly on point, other courts have held that for purposes of premises liability, an employee of a commercial tenant has the same status on the leased property as the employer-tenant itself.” Ford at 151. In the case at bar, “Mr. Ford entered Dollar General’s leased premises at Dollar General’s invitation, to work for Dollar General, and he was fulfilling that purpose when he was killed during a robbery inside the store. He was not invited to work inside the leased premises by Edmondson Village, and he did not enter the leased premises as a customer.” Id. at 152. Simply put, at the time of the shooting, Mr. Ford “was an employee of the tenant, i.e., an agent of Dollar General.” Id. at 151. Therefore, Mr. Ford’s status on the Dollar Store premises vis-à-vis Edmonson Village at the time of the shooting was that of a tenant. Id. at 142

The court further elaborated that, because the status of an individual on property may change depending on where he or she is located on the owner’s property at the time of the incident, Mr. Ford may well have been a business invitee of Edmonson Village had he been located on a common area of the Shopping Center when he was shot and killed. Id. at 152. However, that was not the issue. “The issue was Mr. Ford’s status while working for a tenant inside the tenant’s leased premises. Given his location and the purpose he was serving while there, it only makes sense that Mr. Ford would take on the status of his employer, i.e., that of a tenant.” Id.

The court ultimately vacated the judgment of the circuit court and remanded the case on the issue of duty, holding that “at this stage of the litigation [i.e., motion to dismiss for failure to state a claim], the facts are not sufficiently developed to answer the legal questions whether Edmonson Village owed Mr. Ford a duty to protect him from the criminal acts of third persons on the Dollar General premises by providing security measures in the common areas of the Shopping Center.” However, the principles expounded in the Ford court’s holding regarding Mr. Ford’s legal status on the property at the time of the shooting will undoubtedly be relied on in future litigation.

For more information, contact Stephen J. Marshall.

Reopening of Delaware Courts in Response to Coronavirus

/in /by Reopening of Delaware Courts in Response to Coronavirus

The past year has been filled with many challenges and uncertainty. Fortunately, the state of Delaware is beginning to reopen and enacting various procedures to do so in a safe manner for all. Below you will find an update on the status of courts in Delaware regarding their reopening procedures.

As of July 13, 2021, Governor John Carney lifted the COVID State of Emergency Order in Delaware, and as of the same day, the Delaware Supreme Court lifted the Judicial Emergency. Following the lifting of the emergency, the Supreme Court encouraged courts to continue using audiovisual devices to the extent such devices remained consistent with constitutional and statutory requirements along with court rules, procedures, and practices. As of August 16, 2021, face coverings are required at all Delaware state court facilities, and unvaccinated employees must undergo weekly COVID testing.

Industrial Accident Board:

The Board is resuming all hearings “in person” at both the Wilmington and Dover locations with safety protocols in place. Individuals should provide their own face covering, maintain three feet of social distancing, undergo temperature checks upon entry, and follow occupancy rates as determined by the board administration.

Superior Court of Delaware:

The Superior Court is resuming jury trials. Various safety measures, including social distancing practices and plexiglass shields throughout the court, will remain in place.

Court of Common Pleas:

The Court of Common Pleas is resuming non-jury trials in person. Many other proceedings are continuing to be held virtually. Social distancing practices continue to remain in effect.

Justice of the Peace Court:

The Justice of the Peace Court is resuming all in-person proceedings while adhering to social distancing guidelines, including lobby capacity. The court is encouraging virtual hearings to continue when necessary to assist in clearing backlogs and easing current caseloads.

Case Law Update:

Addressed below is the case of Fowler v. Perdue Inc., (Delaware Industrial Accident Board, 2020), which highlights the first workers’ compensation decision on coronavirus as an occupational disease.

In Fowler v. Perdue Inc., (Delaware Industrial Accident Board, 2020), Carl Fowler was employed at Perdue Inc. when he contracted COVID-19 and filed a Petition to Determine Compensation Due seeking acknowledgment that COVID-19 is a compensable industrial illness. To succeed on this claim, the claimant bears the burden of proving it is more likely than not he contracted COVID-19 at Perdue and that COVID-19 is an occupational disease.  The test for an occupational disease requires the claimant to have contracted the disease at work and their employment posed an increased risk for exposure.

Fowler worked at Perdue from January 2020 until he contracted COVID-19 in late March 2020. Claimant tested positive for COVID-19 on April 3, 2020, and was admitted to the hospital on April 4, 2020. Claimant alleges because he worked at Perdue and went to the cafeteria while on break, he could have been exposed to the virus at work. However, the claimant had a wide variety of social contacts in the weeks leading to his diagnosis. Claimant went to a doctor’s appointment, medical laboratory, Walmart, and Royal Farms. Along with these contacts, the claimant’s wife went grocery shopping, and the claimant’s daughter attended school, rode the bus, and participated in after-school activities. The family did not self-isolate until after the claimant’s diagnosis, and there was no clear indication of the use of masks or protective devices by the family while in public prior to the claimant’s diagnosis.

The board denied the petition.  The holding is highly fact-sensitive and denial attributed to the claimant and his family’s numerous contacts outside of the workplace in the weeks leading up to his diagnosis. The board notes the widespread nature of the virus and how the claimant could have contracted the virus in many ways and many places.  Because the claimant did not meet his burden of proof regarding exposure, the board does not discuss whether COVID-19 is an occupational disease within the meaning of the Delaware Workers’ Compensation Act.

Malicious Defendants Beware: Stipulating to Liability Does Not Prevent the Imposition of Punitive Damages

/in /by Malicious Defendants Beware: Stipulating to Liability Does Not Prevent the Imposition of Punitive Damages

Punishment of a defendant is not often a consideration for jurors in civil litigation, though it may become more commonplace following the District of Columbia Court of Appeals holdings in Edwards v. Safeway, Inc., 216 A.3d 17 (D.C. 2019).

Generally, in order to obtain punitive damages in tort cases, a plaintiff must demonstrate that the defendant committed a tortious act (i.e., negligence, assault, battery), and that act must be accompanied by conduct and a state of mind evincing malice or its equivalent. Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 937-38 (D.C.1995). While the tortious conduct only requires a finding by a preponderance of the evidence, The District of Columbia Court of Appeals requires that punitive damages be established by clear and convincing evidence. The rationale for the heightened standard is that punitive damages are penal in nature, and therefore “a more exacting standard” (as many other jurisdictions, including Maryland, impose) should be required.

Much more recently, in Edwards, the District of Columbia Court of Appeals held that defendants cannot remove the issue of punitive damages from the jury by simply stipulating to liability. The plaintiff in that case, Ms. Edwards, alleged that she was falsely accused of shoplifting leading to her false imprisonment, assault, and defendants’ conversion of Ms. Edwards’ rightful possessions. She sought punitive damages for the actions of the employees of the defendant Safeway, Inc. The trial court precluded Ms. Edwards from presenting evidence of punitive damages, including a surveillance video of the alleged incident, because the defendant had admitted liability and because the manner of the conversion did not matter relating to the amount of damages in the case. The District of Columbia Court of Appeals disagreed, finding an abuse of discretion, and reversed and remanded the matter for further proceedings.

Most notably, the Edwards Court concluded that Safeway’s admission of liability was immaterial to the issue of punitive damages, because a plaintiff’s entitlement to punitive damages is a separate question from that of liability. Though an admission of liability may result in the exclusion of extraneous factual evidence, it does not preclude a plaintiff from showing how the incident happened, if such evidence is material and relevant to the question of punitive damages. The Court further concluded that the video showing the incident or any other evidence regarding the circumstances of Ms. Edwards’s stop at the store, such as her testimony, would have been unquestionably relevant to the issue of whether Ms. Edwards may have a claim for punitive damages that should have been sent to the jury for consideration.

The Edwards Court noted that the evidence relating to punitive damages, as well as the Standardized Civil Jury Instructions for the District of Columbia regarding punitive damages, should have been presented to the jury. The instruction provides that the jury may award punitive damages only if the plaintiff has proved with clear and convincing evidence: (1) that the defendant acted with evil motive, actual malice, deliberate violence or oppression, with intent to injure, or in willful disregard for the rights of the plaintiff; and (2) that the defendant’s conduct itself was outrageous, grossly fraudulent, or reckless toward the safety of the plaintiff.

The court did not address the issue of unfair prejudice that may result to defendants that have stipulated to liability in such cases where punitive damages are sought. While a plaintiff is entitled to make their case for punitive damages, defendants will push the courts to strike a delicate balance in weighing the substantive value of possible evidence in support of punitive damages, while not allowing evidence that will prejudice the defendants in the eyes of the jury. Evidence of malicious conduct may be relevant to the issue of punitive damages, but it should not prejudice the defendant to the point that the jury cannot fairly reach a conclusion as it relates to compensatory damages or fairly evaluate other portions of plaintiffs’ claims. Plaintiffs may receive additional and unreasonable sympathy from the jurors, which could lead to judgments based on emotion instead of the law. Still, morality may deem that if a defendant truly behaved in such a manner that is evil, malicious, or deliberately violent, then that defendant cannot claim prejudice. Needless to say, the District of Columbia frowns upon evil, malicious, and intentionally violent conduct, and now conceding liability can no longer be used as a shield to avoid punishment.

For more information contact Stephen J. Marshall.

 

Can a Lawyer Ethically Partake In Ex Parte Communications With an Adversary’s Current/ Former Employees?

/in /by Can a Lawyer Ethically Partake In Ex Parte Communications With an Adversary’s Current/ Former Employees?

The rules regarding whether a lawyer can communicate with a person represented by counsel are straightforward:

A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so.[1]

But what if a lawyer seeks to communicate with his adversary’s current or former employee? Is the communication off-limits?

In instances where a lawyer seeks to communicate with an adversary’s current employee, their ability to make such contact will depend on whether the employee is a part of the “control group” or in other words, is one “who because of their status or position, has the authority to bind the corporation with respect to the matter.[2] Thus, a lawyer is not prohibited from contacting current employees who may serve as fact witnesses so long as they are not charged with the authority to act on behalf of the corporation in the particular area, which is the subject matter of litigation.[3] This means that it is very possible for a lawyer to contact, for example, your organization’s client’s hourly, low-level sales associate to gain information about a specific individual, policy, or circumstance that is often the subject of your run-of-the-mill slip and fall case.

The rules are even more relaxed when it concerns former employees of an organization since:

[c]onsent of the organization’s lawyer is not required for communication with a former constituent. […] In communicating with a […] former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization.[4]

According to the non-binding Legal Ethics Opinion #1670, it is “ethically permissible for an attorney to communicate directly with the former officers, directors, and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel.”

This opinion was resounded in the recently published and Supreme Court of Virginia approved Legal Ethics Compendium Opinion #1890. And, though there is little case law concerning this specific topic, the issue was fully discussed by the trial court in Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80 (2005).

In that medical malpractice case, the defendant corporation, Virginia Health Services, Inc., filed a motion for a protective order to bar the plaintiff’s attorney from having ex parte communications with its former employees (both former control group and non-control group employees) who were not parties to the action. The court denied the defendant’s motion for a protective order prohibiting ex parte contact with former employees. In its determination, the court considered the United States District Court of the Western District of Virginia’s decision in Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998) (denying ex parte communications with former employees where the former employees’ testimony may impute liability to the former employer), but ultimately relied on the explicit language of Rule 4.2, Comment 4 (now Rule 4.2 Comment 7, and LEO 1670.)

In its decision, the court in Pruett v. Virginia Health Servs., was careful to require Plaintiff’s attorney to (1) advise any former employee that he was representing a party suing the former employer; (2) determine whether the former employee was independently represented by counsel; and (3) advise the former employee that he or she is not his client. Plaintiff’s counsel was also prohibited from providing any legal advice to the former employee, apart from advising the former employee that he or she may obtain a lawyer if they wished to do so.

Therefore, it would seem that when in state court, former employees are “fair game” for ex parte contacts regardless of their former position within the company.[5] Of course, whether making her ex parte communications with a current or former employee, a lawyer must still comply with Va. Rule 4.3 (Dealing With Unrepresented Persons) and Va. Rule 4.4 (Respect For Rights Of Third Persons).                                                                                                                                                                                                                                                              [1] Va. Rule of Professional Conduct 4.2.

[2] Va. Rule of Professional Conduct 4.2, Comment [7].

[3] Va.  LEO 905 (1987).

[4] Va. Rule 4.2, Comment [4].

 Written by associate Alexandra Monaco.

Driver Qualification Standards and Training

/in /by Driver Qualification Standards and Training

Driver shortage continues to be a major concern facing the commercial transportation industry. For four years running, motor carriers rank this as the number one problem facing the industry. ATRI estimates the driver shortfall at 100,000 over the next five years. A significant contributing factor is the retirement of older drivers without enough younger drivers to replace them. The Federal Motor Carrier Safety Administration (“FMCSA”) continues to implement measures and entertain proposals aimed at increasing the pool of qualified drivers.

In 2019, the FMCSA commissioned a study by the Virginia Tech Transportation Institute (“VTTI”) to analyze the relationship between the age and safety of truck drivers.  The study included information on more than 9000 truck drivers ages 21-24 and compared their safety performance levels to drivers of different ages. The research found that driver experience, rather than age, has a greater impact on driver safety risk. The study concluded that there is no safety-based reason not to use younger drivers when structured training, mentoring, and coaching systems are available. However, some members of the FMCSA’s Motor Carrier Safety Advisory Committee (“MCSAC”) disagreed about whether drivers age 21-24 could match the safety performance of older drivers, noting a positive correlation between driver maturity, experience, and safety. One member recommended exercising a high degree of caution when considering the Institute’s research. Still, the study findings may encourage more insurers and employers to provide opportunities to younger drivers.

To promote a larger pool of younger drivers, the FMCSA launched a three-year pilot program in June of 2019 that allows military veterans and reservists under the age of 21 to operate commercial trucks in interstate commerce. The program provides a limited number of individuals, ages 18-20, the opportunity to operate large trucks, provided they have the military equivalent of a commercial driver’s license and are sponsored by a participating trucking company. The FMCSA hopes the program’s benefits will be two-fold, (i) helping military personnel transition into well-paying jobs and (ii) addressing the driver shortage.

The FMCSA also took steps to ensure driver availability and to enable new drivers to continue to receive valuable mentoring during the COVID-19 pandemic. In April 2020, the FMCSA issued a three-month waiver to allow truck drivers with commercial learners permits to operate without a licensed commercial driver in the front seat, provided the driver was still in the truck. This allowed the new drivers to continue to receive necessary additional training while enforcing social distancing.

To reduce regulatory barriers to drivers obtaining their CDL’s, the FMCSA proposed eliminating a federal rule prohibiting state CDL skills instructors from teaching and testing the same applicant. The proposal would also grant states discretion to allow qualified third-party trainers to conduct skills testing for the same person. Research commissioned by the Commercial Vehicle Training Association (“CVTA”) found that the nation’s economy suffers $1.5 billion in annual losses due to delays in driver skills testing. The FMCSA reported that the rule change would expedite the skills testing process, helping to reduce that loss. The CVTA noted the importance of allowing aspiring licensees the chance to take the skills test soon after training, stating that fewer delays help to ensure higher pass rates.

            In 2019, the FMCSA also entertained a petition from the National Association for the Deaf (“NAD”) to ease the rules for deaf and hard-of-hearing drivers. NAD contends that the hearing requirements were conceived at a time of misguided stereotypes about individuals with disabilities. It proposed ending the federal regulation requiring commercial motor vehicle drivers to pass a hearing exam as part of their medical evaluation and amending the requirement that deaf drivers be able to speak. NAD pointed to the fact that the FMCSA has granted five-year exemptions to the medical evaluation for more than 450 deaf drivers with good records. The petition faced strong opposition from the CVTA who argued that driving involves many tasks that require the ability to hear.

            Though the FMCSA appears to be clearing the way for more drivers, especially younger drivers, the implementation of the Entry-Level Driver Training rule (“ELDT”) has been delayed, possibly until February 2022. The rule, finalized in 2016, specifies standards for new driver Class A and Class B CDL training programs. The rule also requires training providers to upload driver-specific training certification information into the Training Provider Registry, and for state driver licensing agencies to confirm that CLD applicants have complied with ELDT requirements before taking a skills test. The FMCSA pointed to a lack of technological readiness by the states to implement the new system as the reason for the delay. However, some training providers note that the federal Training Provider Registry is not up and running either. This delay halts the implementation of new standards and professional-level curriculum available to all new drivers nationwide.

            One area of driver qualification where the FMCSA has not compromised is in its treatment of drug use. In the face of an overall increase in the use of marijuana and cannabidiol (“CBD”) products among American workers, the United States Department of Transportation (“DOT”) advised truck drivers to use CBD products at their own risk. Hemp, from which CBD oils and other products are derived, is now legal. However, marijuana remains a Schedule I drug not permitted for use by commercial drivers. Both contain levels of the psychoactive ingredient THC, but CBD product’s levels are usually much lower. In February 2020, the DOT issued guidance advising that the THC levels in CBD products are not monitored or regulated by the Food and Drug Administration and that certain CBD producers mislabel their product’s THC content level. CBD products containing more than 0.3% THC have been shown to result in positive marijuana drug tests for users. The DOT advised that drivers who test positive for marijuana will not be excused on the basis that they use CBD, and penalties for a positive drug test still apply.

The FMCSA has also taken a firm stance on the issue of human trafficking. On July 16, 2019, the FMCSA issued a final rule permanently banning the employment of commercial motor vehicle drivers who have been convicted of human trafficking. The Administration hopes that the rule will prove a strong and effective deterrent to this criminal activity.

For more information contact Tamara B. Goorevitz.

Changes to SIF/UEF Assessments Set to Expire on June 30, 2021

/in /by Changes to SIF/UEF Assessments Set to Expire on June 30, 2021

During its 2020 Session, the Maryland General Assembly and Department of Legislative Services (“DLS”), put forth and passed Senate Bill No. 8 (“SB8”).  This departmental bill altered the assessment on certain workers’ compensation awards and settlements that fund the Subsequent Injury Fund (SIF) and the Uninsured Employers’ Fund (UEF) by decreasing SIF’s share by 1% and increasing UEF’s share by 1%. The bill took effect July 1, 2020, and was intended to increase special funds revenues for the UEF by approximately $4 million in FY 2021. The bill is set to terminate on June 30, 2021.

By way of background, the UEF and SIF are both specially funded, and their revenues are primarily derived from an assessment on awards against employers or insurers for permanent disability or death and amounts payable by employers or insurers under settlement agreements. Prior to the enactment of SB8, the SIF received a 6.5% assessment on these awards and settlements.  These assessments are the sole mechanism for funding the SIF and pays for both workers’ compensation claims and any SIF administrative costs incurred by SIF for the relevant fiscal year.

The UEF, on the other hand, receives a base 1% assessment on these awards and settlements. The UEF also collects penalties from sanctions on uninsured employers and revenues from the recovery of benefits paid out for uninsured claims.  Additionally, if UEF’s board of directors determines that its fund balance is inadequate to meet its anticipated losses, the board may direct the Workers’ Compensation Commission to impose an additional 1% assessment (2% total) on awards against employers or insurers for permanent disability or death. This additional assessment is currently in effect (meaning that UEF receives 2% for its assessment) and has been since 2009.

Pursuant to a 2019 report on the solvency of the UEF, the UEF advised the Maryland General Assembly that about 80% of its total funding is derived from the current 2% assessment in effect and that, absent same, the fund would become insolvent within a few years.  Further, the 2019 report, revealed that the UEF has been operating at an average annual deficit of – $1.06 million for the period of FY 2015 through FY end 2019.  The SIF, by contrast, reported an FY 2019 ending balance of more than $100 million and has been operating at an average annual surplus of $3.84 million for the same period.

Following receipt of the 2019 solvency report prepared by the UEF, the DLS projected that, without some kind of financial intervention, the UEF would likely become insolvent in FY 2021.  As a result, SB8 was enacted for FY 2021 only.  The bill decreases SIF’s assessment from 6.5% to 5.5% and increases UEF’s base assessment by 1%, meaning that the maximum amount that may be assessed to fund its operations increases from 2% to 3%.

In fiscal 2019, UEF’s existing 2% assessment generated approximately $8 million in special fund revenues, and UEF anticipates similar revenues in future years. Therefore, altering the assessment in this manner decreases special fund revenues for SIF by approximately $4 million in fiscal 2021 only and increases special fund revenues for UEF by the same amount in fiscal 2021 only.  Since the 1% increase in the FY 2021 UEF assessment is offset by the 1% reduction in assessment that funds SIF, there is no net effect on State revenues as a result of this bill.

As noted above, the provisions of SB8 were intended to be in effect for the fiscal year 2021, only.  SB8 is set to terminate on June 30, 2021.  As such, effective July 1, 2021, the assessment on certain workers’ compensation awards and settlements that fund the Subsequent Injury Fund (SIF) and the Uninsured Employers’ Fund (UEF) will return to the pre-bill assessment rates of 5.5% and 1% (base assessment), respectively.

2021 Fiscal year-end revenue and expenditure reporting for both the UEF and SIF are pending as of the date of this article and additional alternations to the assessments scheme which especially funds the UEF and SIF are anticipated following the receipt and review of same by the Maryland General Assembly.  Additional information and a more detailed description of the UEF’s financial status can be found on page 8 of the fiscal 2021 budget analysis for UEF on the Maryland General Assembly website: http://mgaleg.maryland.gov/Pubs/BudgetFiscal/2021fy-budget-docs-operating-C96J00-Uninsured-Employers-Fund.pdf#page=8.

Written by associate Kara Parker.

 

 

 

Defending the Wet Bandits: How to Keep the Kitchen Sink Out of Evidence

/in /by Defending the Wet Bandits: How to Keep the Kitchen Sink Out of Evidence

Imagine, it’s 2021, and you have a consultation with potential clients, Messrs. Marv and Harry. You meet with them, and they look familiar. Harry has a gold tooth, which you’ve seen somewhere before.  When they tell you their legal troubles, it all comes together.

They are being sued by Mr. McAllister, individually and as representative for a putative class of West Virginia residents who all suffered extensive property damage at their homes when they were away on holiday vacation. Burglars stuffed dish towels in their kitchen sinks and left the water running.

Marv and Harry deny liability. You’re not convinced. You remind them they’ve been caught on camera before, engaging in similar conduct, and the images have been seen by millions of people around the world.  (You’re already mentally drafting juror voir dire to identify any viewers of one of the highest-grossing films of the 1990s.)  Marv and Harry disclaim any knowledge of the movie, continuing to profess their innocence. After consideration, you accept the matter because you love tough cases.

First things first . . . how do you keep those pesky allegations of prior misconduct from coming into evidence at trial?

Courts have recognized “the theory that where a defendant commits a series of crimes which bear a unique pattern such that the modus operandi is so unusual it becomes like a signature, then evidence of such other crimes may be admissible.” State v. Dolin, 347 S.E.2d 208 (W. Va. 1986) (citing e.g., United States v. Medina, 761 F.2d 12 (1st Cir.1985); United States v. Hamilton, 684 F.2d 380 (6th Cir.)). To make matters worse, if you’re in federal court, you may not get any warning that the plaintiff intends to introduce the decades old misconduct against your clients.

FRE 404 (b) (entitled “Other Crimes, Wrongs, or Acts”) initially provides in subsection (1) that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”  But FRE 404 (b)(2) (entitled “Permitted Uses”) throws open the evidentiary door, providing “[t]his evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

FRE 404 (b)(3) then requires the prosecutor in a criminal case to provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

There is not a similar requirement for the plaintiff in a civil case in federal court, so you’ll need to be proactive in your defense.  In discovery, seek out any FRE 404(b) evidence plaintiffs intend to introduce at trial. Require the plaintiffs to identify what proof they may have that your clients actually committed the prior bad acts and the specific purpose(s) for which they contend the evidence is permitted.

Then, raise the issue with the federal trial court with a motion in limine to preclude the evidence.  You may have valid arguments that your clients didn’t even commit the prior acts, and therefore, such evidence is irrelevant. Even if the trial court believes they did it, you can contest whether the plaintiffs’ intended use for the prior misconduct fits within an exception. Finally, argue under FRE 403 that any probative value of the prior misconduct is nevertheless outweighed by the danger of unfair prejudice, even if the evidence can pass the permissive threshold under FRE 404(b)(2). Ask the federal trial court to address and rule on these issues before trial so that you can adapt your trial strategy accordingly.

Essentially, you’re asking the federal trial court, or your respective state court, to track the Rule 404(b) procedure utilized by state courts in West Virginia.  WVRE 404(b) previously replicated FRE 404(b) – only requiring the prosecutor in a criminal case to give pretrial notice of such evidence. But in 2014, WVRE was amended and now requires under WVRE 404(b)(2):

Any party seeking the admission of evidence pursuant to this subsection must provide reasonable notice of the general nature and the specific and precise purpose for which the evidence is being offered by the party at trial; and do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

(Emphasis added.)

Even before the 2014 amendment of WVRE, West Virginia state courts were applying a multi-step vetting process to analyze admissibility of “other bad act” evidence offered in civil cases. See Syllabus Points 1 & 2, Stafford v. Rocky Hollow Coal Co., 198 W.Va. 593, 482 S.E.2d 210 (W. Va. 1996) (requiring the offering party to identify the specific purpose for which the evidence is being offered under Rule of Evidence 404(b); directing an in camera hearing be held by the trial court, wherein the offering party must prove by a preponderance of the evidence that the acts or conduct occurred and that the opposing party committed the acts; and instructing the trial court to then determine the relevancy of the evidence under Rules of Evidence 401 and 402 and conduct the balancing required under Rule of Evidence 403).

You may never have the good fortune to be retained by Messrs. Marv and Harry. And I may never be able to convince you that they starred in one of the greatest legal movies of all time. But we can all learn from these characters and be mindful of Rule 404(b) evidence in the representation of our clients. We may need to aggressively defend against a plaintiff’s attempts to get our insured driver’s prior street racing convictions into evidence. Or we may doubt a property damage claimant’s assertion their vehicle was stolen and set ablaze in a field for the third time (coincidentally, of course).

Whatever the threat may be, let’s make sure we have a battle plan.

For more information contact Stephen J. Marshall.